107 Ill. 340 | Ill. | 1883
delivered the opinion of the Court:
This is an action by Monka, against appellant, begun March 15, 1877, to recover damages for injury to his person, caused in November, 1876, while plaintiff was in the service of the corporation. The declaration originally filed attributed the injury to the fault of appellant, and in specifying that fault charged that appellant “carelessly and wrongfully furnished and permitted to remain in use” an insufficient and defective clamp, etc. While the suit was still pending, on October 2, 1880, plaintiff, by leave of court, filed an additional count, claiming damages for the same injury, and averring that “defendant carelessly and wrongfully permitted to become and remain in said rolling mill an unsafe, insufficient and defective clamp, and wrongfully and negligently suffered the same to become and remain in bad and unsafe repair and condition,” etc. To this count defendant pleaded that the cause of action therein stated did not accrue at any time within two years next before “the exhibiting of said additional count,” etc.
The court held this plea bad, on demurrer, and appellant contends this was error. We do not think so. The additional count was not for a cause of action in substance other and different from that stated in the first count. It was merely another mode of telling the same story. Had plaintiff recovered a judgment on the first count alone, and had he brought a subsequent action stating a cause of action precisely as stated in the second count, the second declaration might have been successfully answered by a plea of a former recovery, setting out the record of the first action. The damages sought are for the same injury alleged to have resulted from the defectiveness or insufficiency of the same machinery, and that the existence of such defects was by reason of the fault of defendant. In one case the fault alleged consisted in furnishing and permitting to remain in use the defective clamp, and in the other the fault stated is, that defendant permitted the machinery to remain in use after it had become in an unsafe condition. The substance of the additional count is identical with' that of the first', varying only in the description of the particular point in which the defendant was alleged to have failed in its duty to plaintiff. It is true that a new cause of action distinct from that mentioned in a declaration can not escape the effect of the Statute of Limitations, after the time for suing upon it has elapsed, by being introduced, by way of amendment or additional counts, into the declaration in an action for a different cause of action brought before the lapse of the statutory time, and so this court has decided; but it was at the same time declared, that where the amendment or additional count was introduced merely to restate, in a different form, the same cause of action mentioned in the declaration as originally drawn, and not to a .new and different cause, the rule has no application. Illinois Central R. R. Co. v. Cobb, 64 Ill. 140.
We have considered the exception to the ruling of the court in refusing the defendant the right to read certain extracts •from a standard work on mechanics. This ruling is in entire harmony with the ruling of this court in Connecticut Mutual Life Ins. Co. v. Ellis, 89 Ill. 516, and presents no error.
We have also considered the rulings of the court in giving, refusing and modifying instructions. The objections urged are not substantial. We think, upon the whole, the law necessary 'to guide the jury in its deliberation was correctly given, and with sufficient fullness. The questions of fact in the case are not subject to review in this court.
Finding no error of law, we affirm the judgment.
Judgment affirmed.